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The future of EU internal security after 2014: Will the UK remain a major player?

Publication date:
Jun 08, 2012 11:54 AM

Start:
Jun 08, 2012 12:00 AM
End:
Jul 08, 2012 12:00 AM

Rob Wainwright, Director of Europol, May 2012

Introduction

As
Director of Europol, the European agency in charge of supporting Member
States investigations of serious crime and terrorism, and as British
national, I have good reason to be interested in the future role and
influence of the UK in the European internal security area after 2014.
The creation and strengthening of a European Area of Freedom Security
and Justice is one of the main objectives of the European Union today. I
believe it is also one of best examples of EU adding value to the lives
of European citizens.

The decisions made in this
field by the UK and its European partners affect issues ranging from
organised crime, drug trafficking and terrorism to migration and border
security. These decisions directly affect millions of citizens: their
security, their safety and their basic freedoms, not least in the UK
which is among the European countries most affected by threat from
organised crime and terrorism.

In 2014 the British
government will have to make an important decision, which will have a
long-lasting impact on the UK’s ability to respond to these threats and
to influence the EU’s internal security policies.

Tonight
I am not going to give any advice to the British government or
Parliament on how it should decide in this matter. I have heard
rational arguments on both sides of the debate. In the end it is a
political decision, of course. I am bound by my profession as a civil
servant and police chief and have enough experience to know that I
should refrain from straying directly into political affairs. But my job
does expect me to make my part of the EU work effectively and, for
Europol at least, that means ensuring the strongest possible cooperation
with Member States (MS). This is not driven by the grand designs of the
Great European Project. Rather, in straight business terms, by the
mandate given to Europol and its Director – to help Member States fight
organised crime and terrorism. In fulfilling that mandate we are, quite
simply, stronger with the UK as an active partner than not. And I
think the benefit flows both ways.

As I travel
round the EU making the case for increased partnership with Europol –
ultimately for the benefit of MS themselves – always wary of coming over
as that caricature of Big Government once painted by Ronald Reagan when
he said that “the nine most terrifying words in the English language
are, ‘I’m from the Government and I’m here to help.’” “I’m from the EU
and I’m here to help” doesn’t grab the attention of many policemen
around Europe, I can tell you.

More than
most, the police community is a pragmatic, conservative one with a
culture developed over 200 years. It doesn’t easily embrace change and
it tends to work with what it knows best rather than what might be
better. Not just in the UK but, more or less, across Europe, with
possible exception of some environments in the newest Member States in
central and eastern Europe, where they are more used to radical change
thrust upon them in the last 20 years.

The process
of establishing Europol, therefore, as a mainstay of the police
community in Europe, has been difficult. The decision to create the
agency was a political one 20 years ago – it certainly did not come from
the grassroots. Over that 20-year period we’ve had to fight for every
last inch of our place in the community and earn every last drop of
respect for our work. It’s not been easy – and still we haven’t
succeeded. But signs now are better than ever before. We have done that
by keeping our feet on the ground, staying tightly focused to our
mandate, and only doing things that genuinely make a difference.

My
point is – at least in my world, the EU works. I genuinely believe that
and say the same to any audience in any Member State. But it does so by
having a clear mandate and capability to add real value to citizens’
lives.

It’s for the UK to decide its future
in the EU, also in relation to Europol, but I can show that it would
miss something, at least, by no longer being an active part of our
agency. How much that matters in the end is for others to decide.

Meantime,
in context of tonight’s debate, allow me to accentuate the positive in
terms of the UK’s engagement in this area of EU. At strategic level,
despite its particular position (opt-in/opt-out) in the EU
decision-making process, the UK often sets the EU agenda in internal
security. At operational level, the UK law enforcement community has
played a leading role in very many, major transnational criminal
investigations, many of them supported by Europol. The UK is one of the
most active and best supporting Member States at Europol.

Why
is it so progressive in this way? Pragmatic reason, largely - because
UK strategy to fight organised crime and terrorism is founded on belief
that international cooperation plays an essential part – these threats
are, by their very nature, transnational and becoming more so with the
growth in illegal cyber activity. UK knows that it cannot do this job
alone anymore. In climate of financial austerity, it also must search
for most cost-effective ways of doing international business. It has
decided – rightly – that, as a multilateral hub for law enforcement
cooperation in Europe, we offer better value-for-money access to
cooperation mechanisms than much more expensive other options – e.g.
bilateral links. UK has closed a number of bilateral posts in Europe in
last 2 years and transferred work to its liaison office at Europol.
Other Member States are doing the same.

Why 2014?

I
will return to these points shortly, but first here’s a brief reminder
of why 2014 matters and of the UK position in the EU decision-making in
the field of internal security after Lisbon.

Since
the establishment of EU JHA cooperation under the 1992 Maastricht
Treaty, police and judicial cooperation in criminal matters remained
outside the mainstream of European integration: It was governed by
unanimity in Council and the European Court of Justice (ECJ) had almost
no power to review decisions. The UK therefore retained a veto.

Mindful
of the national interest and keen to preserve sovereignty in such a
sensitive area, successive British governments have also agreed with
their European partners to retain the option to choose, on an ad-hoc
basis, to participate or not in new EU measures proposed in this field.
This opt-in facility, which was granted to the UK and Ireland under the
Amsterdam Treaty in 1997, also meant that the UK could decide to
participate in measures where the ECJ had no jurisdiction.

Under
the Lisbon Treaty, which came into force in December 2009, the UK’s
participation in EU JHA legislation is now governed by 2 protocols,
which have more or less maintained the status quo: Protocol 19
concerning Schengen - the UK is deemed to be participating in the police
and judicial cooperation measures of the Schengen acquis in which it
already takes part, unless it decides to opt-out – and Protocol 21
concerning the JHA area - decisions in JHA will not apply to the UK
unless it decides to opt-in.

However, those
technical arrangements for the UK cannot hide the fact that the Lisbon
Treaty has substantially increased the powers of European supranational
institutions in proposing and enforcing EU legislation in the JHA field.
This has an important impact for the UK and for the future of EU
internal security policy.

The Lisbon Treaty
included a shift from unanimity to Qualified Majority Voting (QMV) in
the Council of Ministers on the vast majority of crime and policing
legislation, meaning no more veto for individual Member States, put the
European Parliament on an equal footing with the Council and perhaps
more importantly, after a transitory period of 5 years (which ends in
December 2014), the jurisdiction of the ECJ will apply fully over all
the EU Justice and Home Affairs areas. This means, for example, that the
Commission will have the right to take Member States to the ECJ for
failing to implement EU JHA legislation (“infringement actions” under
art. 258 TFEU). And it means that Member States can no longer opt out of
the Court’s jurisdiction. This would apply to the UK, should it decide
to opt into legislation in policing and criminal justice.

The
protocol on transitional provisions annexed to the Lisbon Treaty sets 1
June 2014 as a deadline for the UK to decide whether to accept the
normal jurisdiction of the ECJ in the field of police and justice
criminal matters. If it does not, all former legislation in police and
justice cooperation in criminal matters will no longer apply to the UK
as of 1 December 2014. This is known as the “block opt-out” of June
2014. The body of EU laws covered by this includes significant pieces of
legislation which form the backbone of the European internal security
architecture (around 133 pieces of legislation, including Europol and
the European Arrest Warrant (EAW)).

But this “block
opt-out” is diminishing in size because even before June 2014, once a
pre-existing measure is amended, the court’s normal jurisdiction applies
and the UK must decide whether it wishes to participate on a case by
case basis. This will be the case for a number of EU laws, for example
on terrorist financing and money laundering, which are the subject of
proposed new measures currently. It will also be the case for the EU’s
judicial body Eurojust, the European Police College (CEPOL), and yes,
for Europol as well. So the clock already ticks for us. Let me explain
why.

Europol new Regulation

As a
result of another consequence of the Lisbon Treaty, the European
Commission will present a proposal for a new legal basis for Europol in
January 2013. This will have major consequences for the agency: the
drafting of the Europol Regulation is an opportunity to make the agency
better fit to face the new demands of fighting organised crime and
terrorism, for example in cyber space.

Under
the ‘opt-in’ deal the UK will have 3 months to decide if it wants to
participate in the adoption and application of this proposal. If it
does, there will be no possibility to opt out later. If the bill is
adopted, the UK will be bound by it and will have to accept the
jurisdiction of the ECJ over the matter. If it does not, the UK will
still be allowed a place at the negotiating table but it will have no
vote and therefore a reduced ability to shape the proposal. But this is
not only about the drafting of the legislation; it is also about the
operational cooperation which that legislation foresees. So, if the UK
does not participate, the UK law enforcement community will have to
withdraw staff from the agency, and face a reduced influence at the
agency, with the resulting negative impact on operational coordination
with European partners.

So this does matter –
not least for the future of my agency and, I believe, for the future
capability of the UK to operate effectively on the international stage
in combating OC and terrorism. How much would be lost in reality? Well,
let’s take a look at what the UK currently does in this sector of the
EU.

The UK is often setting the EU agenda in internal security

The
UK’s contribution to policy-making in EU internal security is
invaluable. Without doubt it is one of the most influential Member
States in shaping European internal security legislation. Let me give
you a couple of examples.

Post 9/11, when EU
Ministers urgently considered how to respond, an overhaul of the
Schengen Information System (SIS) emerged as a priority. The UK
subsequently provided the lion’s share of the functional requirements
for SIS II, based on the Police National Computer and the UK’s own
border protection system. The EU Member States agreed on the
requirements for SIS II based largely on UK proposals, despite the fact
that the UK is outside the Schengen area. The technical implementation
of SIS II has been a different story. That’s another matter.

During
the British Presidency of the EU in 2005, the UK pushed for the
adoption of Council Conclusions on the concept of Intelligence-led
policing (ILP) and a European Criminal Intelligence Model (ECIM). Seven
years later, this concept can not only be found in almost all EU
strategic documents relating to police cooperation but it has also
become the cornerstone of the serious organised crime threat assessment
(SOCTA) carried out by Europol. At domestic level intelligence-led
policing is now considered best practice and a growing number of Member
States and candidate countries to the EU implement it. No exaggeration
to say that this British model is now a main feature of policing across
Europe.

A more recent example is the current
proposal to establish an EU Passenger Name Records (PNR) system.
Initially, the Commission proposal excluded internal EU flights but,
after a UK initiative during summer 2011, the proposal has now been
amended to include them.

Meanwhile, very important
other measures in the JHA sector are on horizon. Amongst them, a
possible new EU Terrorist Finance Tracking System (TFTS), a policy issue
always very close to British hearts. In normal circumstances, officials
in Home Office, Security Services, would certainly be preparing to
deliver major influence on the dossier in Brussels. Perhaps they will
still, but opt-out won’t make that any easier.

Operational benefits

The
UK derives significant operational benefits from engagement in this
area. Organised crime and terrorism threats are by nature transnational
and know no border. As director of Europol and former International
Director of SOCA I’ve seen enough evidence of that.

Europol’s
latest Organised Crime Threat Assessment (the 2011 OCTA) found that
organised crime is becoming increasingly diverse in its methods and
structures. The emerging criminal landscape is marked increasingly by
highly mobile and flexible groups operating in multiple jurisdictions
and criminal sectors, and aided, in particular, by widespread, illicit
use of the Internet. More than ever before, strong levels of cooperation
exist between different organised crime groups, transcending national,
ethnic, and business differences. The connection between terrorism and
organised crime networks is also becoming more blurred. Terrorist and
violent extremist activities are, in some cases, financed through crime
or organised crime activities.

These new
trends provide a new rationale for the EU to strive for more effective
coordinated action at EU level. Certainly not less. So a more globalised
threat surely demands a more joined up response between governments.
Few people doubt this. As I said earlier the UK law enforcement
community is acutely aware of this fact and has traditionally been at
the forefront of EU police cooperation.

With
Europol this means the UK playing an increasingly progressive role in
extracting optimal value from Europol’s unique capabilities. The UK, and
increasingly others, recognises that we offer something that they
haven’t got themselves and cannot acquire elsewhere. This is, for
example, a set of intelligence databases on organised crime and
terrorism, unique in its pan-European scope and detail, increasingly
powerful in identifying criminal connections across borders. SOCA now
routinely interrogates these databases with all new cases, yielding a
hit rate of between 10-20%. That means in a high number of cases we are
able to offer SOCA unique intelligence about an aspect of their
investigation which was not already known, e.g. links between the SOCA
target and criminals elsewhere in Europe. Following a recent visit by
the Metropolitan Police Service (MPS) Commissioner, the MPS is in the
process of doing the same thing. Databases such as this simply don’t
exist anywhere else.

We offer a breadth of
expertise in every form of organised and terrorist activity drawn from
the diversity of our workforce. We employ experienced law enforcement
officers from every major law enforcement agency in Europe – in total we
have almost 800 people now, from approx 40 countries. Some of them are
the leading experts in their field in Europe and, on a daily basis, are
adding real value to individual investigations.

Our
staff base includes 140 liaison officers from those countries – a
unique arrangement, found nowhere else in the world. They all carry the
full operational authority of their home country, are co-located with
themselves and our analysts and experts, are using a purpose-made secure
information exchange system that we have developed and now rolled out
to every agency in Europe. And they are using this capability and our
information to facilitate around 14,000 cross-border operations each
year. We offer an operational hub truly different in its scale and
impact than anything else in Europe.

An example of
our common work is Operation Rescue (child pornography), which focused
on an online paedophile network of up to 70,000 members worldwide
operated by a forum coordinator and an internet server based in the
Netherlands. The server was seized by Dutch police allowing for forensic
examination of it by Europol analysts and their colleagues in UK and
the Netherlands.

In 2010, Europol experts cracked
the sophisticated security features that were built into the server and
then uncovered this huge network of suspected child sex offenders,
working with the UK authorities in particular. Europol analysts could
piece together the activities of the forum, identifying its members
worldwide and issue over 4,200 intelligence reports, allowing police
authorities in those countries to track down the offenders involved and
potential victims. In parallel similar work was carried out in the UK.

Latest
figures from the results of this intelligence work and operational
coordination are that 800 suspects have been identified, 184 arrests
already made and 252 children, as victims of these terrible crimes,
identified and rescued from further harm. The UK played a major role in
particular in the Child Exploitation and Online Protection Centre
(CEOP), while Europol’s unique contribution in this case came from our
digital forensic analyst (cracking the software code after others in the
Netherlands and UK failed), our analysis in identifying a world-wide
network, and ability to coordinate police action across 32 countries.

Another
example is Operation Golf (trafficking in human beings), a Metropolitan
Police investigation involving a Romanian criminal group based in the
UK and Romania. The criminal group was involved in the trafficking and
exploitation of Romanian children who were “acquired” in Romania,
brought to the UK and then used to produce money by carrying out thefts
and begging, mainly in London. Their identities were also used to carry
out benefits and other fraud.

From intelligence,
the Metropolitan Police was aware that the criminal organisation valued
each child at about 20,000 Pounds Sterling. On average, the organisation
made 160,000 Euros of illicit income per annum per child. The visible
criminal activities took place in the UK but the organisation itself was
based across several countries, involving the UK, Romania, France and
Spain. So the MET decided to share intelligence with Europol.

Over
a two-year period, Europol was able to support the operation by
coordinating operational meetings, facilitating the exchange of
intelligence and help coordinating simultaneous enforcement activity in
the UK, Romania, Spain and France. Europol’s powerful IT systems and
analytical support enabled the Metropolitan Police to identify other
significant members of the organisation based in several EU countries.

Outcome:
115 arrested: 90 in UK and 25 in Romania, 268 trafficked children
identified in UK, 45 children located and rescued, the criminal
organisation disbanded and 4 million benefit fraud identified and
stopped in the UK.

A pro-active use of European
police cooperation instrument such as Europol helps UK law enforcement
to more effectively disrupt criminal networks and make UK citizens
safer. Similar benefits felt in other EU Member States as a result of UK
engagement.

Conclusion

To
conclude, my experience as a practitioner is that in order to increase
efficiency in the fight against crime and terrorism, and at a time when
cybercrime is growing exponentially especially, we need more European
cooperation in police and justice. I don’t call for much more
legislation, if any – we have enough to be getting on with. But let’s
use it to its full potential. This assessment is widely shared by the
law enforcement community across Europe and especially in the UK where
the law enforcement authorities are leading the trend in terms of
international cooperation.

Perhaps there are a
few idealists among my former colleagues in the UK who pro-actively
engage with Europol because they believe in the European integration
project, but I haven’t found many. They simply do it because they are
pragmatic and Europol’s support delivers tangible benefits in terms of
disrupting more organised crime networks and putting more crooks behind
bars. I guess they know as much as I do the value of the UK remaining
closely involved in European police and justice cooperation instruments,
in order to add value in fighting crime and terrorism. They are not in
it to please the Commission or even the British Director of Europol –
simply to help themselves in protecting British citizens.

The
same logic applies to the UK’s role in EU JHA policy-making: the UK is a
respected player at strategic level and its influence over the
development of an area of freedom, security and justice in Europe has
been remarkable so far. British citizens are safer and better protected
when the UK is fully engaged in policy-making at EU level because EU
legislation is better as a result.

UK engagement is
also necessary to ensure that fundamental rights and individual
liberties are fully enshrined in the design of EU internal security
policies.

So the UK’s commitment to this field of
EU policy will also help to safeguard the liberties held dear in the UK,
in a longstanding tradition going back to Habeas Corpus, and enriched
by one of the illustrious spiritual fathers of UCL, the philosopher and
social theorist Jeremy Bentham.

Protecting EU
citizens in an Area of Freedom, Security and Justice for all is
certainly a component of any European democratic project that respects
national sovereignty and diversity. To defend these ideas while at the
same time protecting British citizens from the threats of organised
crime and terrorism, the UK should not lose its capacity to influence EU
law making. To do that, it must remain at the heart of the
decision-making process.